Anyone who’s gotten a tattoo knows part of the fun is being able to display it off at will. Tattoos are often deeply personal forms of expression, regardless of the teasing you might receive for your choice of design or placement. But a fun twist comes into play when you view the ink from an artist’s perspective. Yes, the tattoo is on your body, but does the artist maintain certain intellectual property (IP) rights over their work? This was the query posed by tattoo artist Jimmy Hayden, and while he lost his copyright case, the outcome leaves room for potential discussion on how future cases could progress.
The intriguing case in consideration revolves around well-known tattoo artist Jimmy Hayden. Bloomberg reported that after six years of litigation, an Ohio federal jury concluded that Take-Two Interactive Software Inc. and 2K Games Inc.’s NBA 2K series did not infringe Hayden’s rights in the work he’d tattooed on basketball star LeBron James. This marked the third time since 2020 that a judge or jury declined to endorse the cut of the video game’s profits a tattooist claimed when a real-life person portrayed in the game showed their designs.
However, it’s unclear how tattoo artists aspiring to protect their copyright should handle similar situations in the future. Would they view the display and proliferation of their artwork as free publicity? Or should they incorporate stronger contractual language requiring clients to consult the artist each time they display, record, or photograph their ink — regardless of the potential impact on business relationships?
Spearheading a communal effort, artists could potentially influence gaming companies’ approach to replicating players’ tattoos without proper consultations. But pushing against companies like EA or 2K to switch from hyper-realistic portrayals of characters to more generic forms would undoubtedly face tremendous pushback.
While it’s unlikely these cases will reach the Supreme Court, another interesting aspect is how a ruling might intertwine with the verdict of the Andy Warhol Foundation v. Goldsmith. Perhaps, drama like this might produce another Elena Kagan procedural footnote.